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Bergstein & Ullrich, LLP

This blog covers the civil rights opinions of the Second Circuit Court of Appeals. Sponsored by the law firm of Bergstein & Ullrich, LLP, New Paltz, N.Y. We can be reached at www.tbulaw.com. This blog should not be construed as offering legal advice.
Bergstein & Ullrich is a litigation firm formed in 2001. We concentrate in the areas of civil rights, employment rights and benefits, workplace harassment, police misconduct, First Amendment and appellate practice.
We are admitted to practice in the courts of the State of New York, the Southern, Eastern and Northern Districts of New York, the Second and Third Circuit Courts of Appeal and the United States Supreme Court.
This blog's author, Stephen Bergstein, has briefed or argued approximately 200 appeals in the State and Federal courts.

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Wednesday, August 22, 2012

I'll have a bowl of Iqbal, please

If you sue people for a living, you know the Iqbal case. Iqbal is a Supreme Court case from 2009 that says the lawsuit has to contain plausible claims. The good old days of writing a short complaint that simply places the defendant on notice of the claim are over. You have to file a detailed complaint now, and the allegations have to plausibly support your case. The Court of Appeals has not provided too much guidance in this area for employment discrimination cases, so we take the few morsels as we find them. Here's one case.

The case is Drumm v. SUNY Geneseo College, a summary order decided on June 29. Drumm is a female who sued the college for gender discrimination/retaliation under Title VII. The lawsuit is dismissed under Rule 12, which means that case does not get out of the starting gate, without any discovery.

In order to plead a Title VII retaliation case, the plaintiff has to allege that she complained in good faith about gender discrimination, prompting some thin-skinned administrator to retaliate because he couldn't handle the truth. But that "good faith" requirement is what knocks out the complaint. Drumm only alleges that she "had a good faith basis to believe that she was being treated differently on the basis of her sex." This is too conclusory to survive a motion to dismiss under Iqbal. Without a greater factual basis to explain why she had a good faith belief, the federal courts are not going to subject the defendant to 100+ hours of discovery and summary judgment motion practice before the case is dismissed on the merits.

Another allegation in the complaint that might support the retaliation claim is Drumm's statement that "on two occasions day positions she requested were given to younger female employees." This, too, is not enough to show that Drumm had a good faith belief that she suffered the gender discrimination necessary to predicate a retaliation claim. While the Court of Appeals (Calabresi, Lynch and Lohier) does not provide any reasoning for this holding, it's probably not enough to say you were treated unfairly when other women got the position. And, while Drumm alleged that a supervisor "berated" and her and subjected her to harsh comments (he called her a "disappointment"), that only represents "general allegations of mistreatment" and not gender discrimination.

The Second Circuit drops a footnote suggesting how this complaint could have survived the motion to dismiss. "We note that plaintiff has made no allegations regarding how her supervisor treated other employees. An allegation that, for example, her supervisor directed harsh comments only at female employees might have provided a good faith basis for plaintiff’s complaint of gender discrimination, but the plaintiff makes no such allegation." So there's some legal advice from the Court of Appeals on how to draft your pleadings.